Mary Botsay v. Carolyn Colvin, Acting Cmsnr

658 F. App'x 715
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 4, 2016
Docket15-31030
StatusUnpublished
Cited by4 cases

This text of 658 F. App'x 715 (Mary Botsay v. Carolyn Colvin, Acting Cmsnr) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mary Botsay v. Carolyn Colvin, Acting Cmsnr, 658 F. App'x 715 (5th Cir. 2016).

Opinion

PER CURIAM: *

The Social Security Administration concluded Mary Botsay was not entitled to disability insurance benefits and supplemental security income. The district court affirmed the decision. We also AFFIRM.

FACTS AND PROCEDURAL BACKGROUND

Mary Botsay filed an application for disability benefits and supplemental security income, asserting that her disability began in August 2011. At the onset of her alleged disability, Botsay was 57 years old. Botsay, who is high-school educated, had a long employment history as a customer service *717 representative and data entry clerk. She contended she was no longer able to work due to osteoarthritis in her right knee, a mild hallux valgus deformity in her left foot, bilateral hand pain, and possible nerve damage in her right shoulder. Several doctors treated Botsay over a three-year period, with others reviewing her case on a consultative basis.

On September 24, 2013, Botsay’s initial application for benefits was denied by the Social Security Administration (“SSA”). Botsay requested a hearing, at which she successfully moved to amend her disability onset date to August 1, 2012. In May 2014, an administrative law judge (“ALJ”) determined Botsay was not disabled because she had the residual functional capacity for sedentary work as a customer service representative or data entry clerk with some limitations. The Appeals, Council denied Botsay’s request for review of the ALJ’s decision. Botsay then filed suit against the SSA Commissioner seeking to overturn the ALJ’s disability determination. The district court, adopting the - magistrate judge’s report and recommendation, concluded the ALJ committed harmless error in explaining the outcome of one medical test. Otherwise, the district court held substantial evidence supported the ALJ’s assessment of Botsay’s capacity for work. Botsay timely appealed.

DISCUSSION

We do not “reweigh the evidence or substitute [our] judgment for the Commissioner’s” in reviewing the denial of benefits. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). Instead, we are restricted “to two inquiries: ... whether the [administrative] decision is supported by substantial evidence on the record as a whole, and ,.. whether the Commissioner applied the proper legal standard.” Id., see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence “is more than a mere scintilla and less than a preponderance.” Perez, 415 F.3d at 461 (quotation marks omitted).

Relevant regulations establish a “five-step analysis” to determine whether a claimant is eligible for benefits: (1) the claimant is not engaged in “substantial gainful [work] activity”; (2) the claimant’s impairment is “severe”; (3) the impairment “meets or equals ... an impairment” listed in Appendix 1 of thé SSA regulations; (4) the claimant lacks the residual functional capacity to perform “past relevant work”; and (5) there is no other substantial gainful activity that the claimant would be able to perform. See id., see also 20 C.F.R. § 404.1520(a)(4)(i)-(v). Through step four, the burden of proof rests upon the claimant to show she is disabled. Id. At the last step, “the burden shifts to the Commissioner” to show that there is other gainful employment the claimant is capable of performing despite her existing impairments. Id.

Here, the ALJ resolved Botsay’s case at the fourth step, concluding that Botsay’s impairments could cause some of the symptoms she alleged, but that Botsay’s “statements concerning the intensity, persistence and limiting' effects of [those] symptoms are not entirely credible.... ” Thus, the ALJ determined Botsay was capable of performing past relevant sedentary work as a customer service representative and data entry clerk.

On appeal, Botsay argues that her case “hinge[s]” on the assessment of her dominant right upper extremity limitations because her past jobs involved typing and other computer and office tasks. At the administrative hearing, a vocational expert' agreed with the following hypothetical posed by the ALJ: if Botsay could “frequently perform overhead reaching with the dominant right upper extremity and ... frequently handle, finger, and feel *718 with” the same, Botsay could continue working as a customer service representative or data entry clerk, (emphasis added). If Botsay could only “occasional[ly]” engage in those activities, though, the expert agreed that Botsay would not be able to engage in past relevant work, (emphasis added). Botsay contends the ALJ’s decision is not supported by substantial evidence because the ALJ mischaracterized objective medical evidence showing the severity of her upper extremity limitations and incorrectly found Botsay’s testimony about the intensity and effects of her symptoms not credible.

Botsay specifically points to two medical evaluations. First, she asserts that a February 2014 MRI revealed chronic tendinitis of the supraspinatus, a small muscle in the upper back that affects the shoulder blade; a tear in her coracoclavicu-lar ligament, which also affects the shoulder; moderate chronic degenerative changes in her acromioclavicular joint, which is at the top of the shoulder; and subacromial bursitis, or a condition eaused by inflammation of one of the tendons in her rotator cuff. Thus, Botsay argues, the ALJ erred in finding that the MRI showed “no tendonitis” and in characterizing her diagnosis as a “mere[ ] ... sprain.”

Second, Botsay claims that the ALJ’s assessment that a July 2013 exam was “within normal limits” was “clearly wrong.” Botsay emphasizes that the doctor noted positive full can, Whipple, and Hawkins tests, indicating pain or weakness in her shoulder. The exam also revealed crep-itus, or cracking when moving the joint, in the thumb and bilateral thumb arthritis. Botsay argues these assessments are corroborated by past positive tests used to diagnose carpal tunnel syndrome or nerve issues in the hands.

Botsay is correct that the ALJ misread the February 2014 MRI. Although, as the magistrate judge noted, the copy of the MRI results in the record is very unclear, the notation is of “rc tendonitis” and not “no tendonitis.” We have held, though, that a mistake in an ALJ’s decision does not automatically render the entire decision unsupported by substantial evidence. See Qualls v. Astrue, 339 Fed.Appx. 461, 464 (5th Cir. 2009) (analyzing the effect of an ALJ’s mischaractdrization of an annular tear in the ALJ’s denial of disability benefits). For that outcome, a claimant must “show that the ALJ’s disability determination would have been different if the ALJ had not” made the mistake. Id. We do not find Botsay successful in that regard.

As an initial matter, the Government is correct that, despite the mistaken reading of the MRI, the ALJ acknowledged that other previous tests showed Botsay has tendonitis and other shoulder problems.

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658 F. App'x 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mary-botsay-v-carolyn-colvin-acting-cmsnr-ca5-2016.